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Information Without Borders?

Information Without Borders?

Published February 10, 2011

The info-wars have begun, and Iceland is begging to be the legislative battleground. In the wake of the international controversy made mainstream in part thanks to WikiLeaks’ highly-publicized and continued release of leaked documents from around the world, Iceland remains curiously relevant to the debate raging globally about transparency reform, information freedom, and the future of journalism. The Icelandic Modern Media Initiative (IMMI), founded last year in tandem with a proposition to drastically overhaul the country’s freedom of information laws, is responding to the new info-climate by proposing a legislative framework that could effectively make Iceland into an international transparency safe-haven.
An amalgamation of legal provisions from around the world that deal with source and libel protection, freedom of information and transparency, the IMMI proposal has garnered international attention as the most comprehensive legislative protection package for investigative journalism and free speech that the world has seen to date. Notably, three of the five primary authors of the Parliamentary proposal— Julian Assange, Rop Gonggrijp, and Birgitta Jónsdóttir—are among others being probed by the U.S. Department of Justice as part of the ongoing criminal investigation into WikiLeaks’ disclosure of thousands of leaked State department cables beginning in November 2010.
Yet for many freedom of information activists following the transparency movement—WikiLeaks is not the point.
“This is a much more complicated story than just WikiLeaks,” says Smári McCarthy, co-founder of the Icelandic Digital Freedom Society, ex-WikiLeaks volunteer, and one of the authors of the IMMI proposal who as of yet is not visibly under investigation by the DOJ.
“To focus on them is like to focus on one grain of sand on a very big beach.”
THE IMMI REVOLUTION
Smári and others in the core organizing group of the IMMI describe WikiLeaks as the “crowbar” of the information freedom movement—the wedge that opened the floodgates—propelling the issue into mainstream discussion.
“I’ve been doing this for a lot of years,” says Smári, “and I’ve always had to start off by explaining what the hell I’m talking about. Now I don’t have to explain that anymore. Now I just have to figure out a way to make it seem less antagonistic.”
But in Iceland that battle may already be close to being won, especially since the IMMI proposal was passed unanimously by Alþingi in June of last year.
“[We started talking about IMMI] just after the big National Assembly [in 2009], where ‘integrity’, ‘equality’ and ‘honesty’, were sort of the key words” says Birgitta Jónsdóttir, the proposal’s chief sponsor in Parliament.
“I realised that if there was a time for Iceland to take a specific route or direction, this could fit into that sensation that the nation had.”
An Icelandic MP and the founder of The Movement (formerly of The Citizen’s Movement), a political party devoted, as she puts it, to “changing the way we do business in Parliament,” Birgitta considers the freedom of information debate to be central to the questions Iceland struggles with as it begins its slow recovery from the economic collapse.
“I’ve read the Shock Doctrine,” says Birgitta, “and that implies that when nations are in crisis, very damaging legislation is often pushed through because people are simply in too much shock to realise what sort of impact it can have. But during that state of shock, you can also do very positive things.”
“If you live in a democracy,” Birgitta says, “and don’t have freedom of information, it’s not a democracy. And people have to understand that if you don’t have freedom of information online, it’s not going to be offline, either.”
Underlying their emphasis on the importance of freedom of information (or foi as some of them really do call it), in particular with regard to legislative reform, the philosophy of the IMMI organisers seems to be based in the shared belief that information is central to a functioning democracy.
“When Iceland’s economy collapsed,” says Smári, “what we saw was that every single failing that caused that collapse was a lack of information flow. The regulators, the banks, the auditors, everybody throughout the chain either had insufficient information, or whoever was supposed to be regulating them had insufficient information. So the entire thing can be to some degree understood as just a failing in information flow. And of course if you don’t have the information you don’t have accountability, you don’t have any of the safeguarding structures actually functioning. So in essence you do not have anything that is in any way akin to a democracy, if you don’t have information.”
ANTIDOTE TO SECRECY
The idea for Iceland as the “Switzerland of bits”—the information-focused equivalent of a tax-haven—was first brought up to members of the IMMI at an Icelandic Digital Freedom Society conference in 2008. The suggestion came from John Perry Barlow, an American cyberlibertarian and one of the founders of the Electronic Frontier Foundation. The following year, the DFS invited WikiLeaks to speak at their annual conference. Reiterating Barlow’s sentiment of an information Mecca, WikiLeaks also did him one better, providing the members of IMMI with a list of laws regarding press and source protection that had proven useful to them, a list that would become the blueprint for the IMMI proposal.
“We cherry-picked all the best laws from around the world that are dealing with the issue of freedom of information, speech and expression,” says Birgitta. “And what we did was not only cherry-pick the best laws, but the laws that are actually functioning as the best laws. They don’t only look good on paper. The reason for that is that if our law would come under attack, because we’re a relatively small nation, then it would be an attack also on the law in Sweden, or Belgium or the United States, or France.”
Julian Assange— who helped draft the proposal and also to present it to members of Parliament prior to the vote—wrote in a blog entry on the Guardian website the night before it was filed, that he hoped that “Iceland could be the antidote to secrecy havens.”
“It may become an island” said Assange, “where openness is protected – a journalism haven. Sleet Street 2.0”
NO INFORMATION LEFT BEHIND
The question of how best to facilitate information flow, and how to do it responsibly, is a key and contended question brought into the public eye by the actions of WikiLeaks over the past few years.
Herbert Snorrason is one of the primary spokespeople for OpenLeaks (www.openleaks.org), a whistleblowingalternative that launched its site late last month and that advocates a more egalitarian approach to the distribution and release of leaked documents. Herbert ended his stint as a WikiLeaks volunteer in September 2010, right around the same time as several other key names, including Birgitta Jónsdóttir, Rop Gonggrijp, Smári McCarthy, and Julian Assange’s ex-right-hand man and current OpenLeaks spokesman Daniel DomscheitBerg.
“There was some drama,” says Smári. “The split was of course rather dramatised in the media. But it wasn’t necessarily bad drama. The divergence is just healthy, really. It means that you get this proliferation of different approaches to the same goal.”
The OpenLeaks approach, says Herbert, is to “function as a mere conduit between a whistleblower and an organisation of their choice.”
“We will operate in a content-neutral manner,” says Herbert. “Making editorial choices is not our place. We’re not functioning as a journalistic organisation, and in some sense I think that’s where WikiLeaks started to go wrong.”
WikiLeaks’ high-profile approach and global-impact emphasis, says Herbert, leaves a lot of valuable leaked information untouched or underused.
“With the policy of maximizing impact it seems fairly obvious that the leaks that are most likely to be chosen are the ones that are the easiest to use in order to have an impact,” says Herbert.
“Yes, WikiLeaks does make everything available publicly, which is a good thing. But at the same time it does mean that there’s this massive archive of things that hardly anyone has looked at. And because it’s public, no journalist is interested in looking at it because they can never be sure that they won’t get scooped by somebody else. And that means it just sits there.”
OpenLeaks, meanwhile, expects that the documents flowing through their system will be related mostly to local issues, though the organisation itself will be working globally.
“Local impact is better than global attention,” says Herbert.
OpenLeaks hopes to be able to function as a mere middle-man, helping to direct information from leakers to the organisation of their choice, by providing a mechanism that ensures anonymity.
This approach is at its core quite distinct from that of WikiLeaks, at least as far as how the organisation sees itself; WikiLeaks’ slogan, after all, is “we open governments,” but the OpenLeaks approach hopes to be much more egalitarian.
“Our goal is to help as many people as possible to provide resources for whistleblowers,” says Herbert. “So our goal is not in any sense specifically to pressure change in governments or other organisations, it’s simply to make sure that other people are able to get their information out there. What the long-term consequences of that are is quite debatable. The immediate consequences are quite likely to be that organisations that need to keep secrets will try to be even more secretive. But I don’t think that is sustainable in the long term. Eventually they will have to adapt to a more transparent environment.”
A more transparent environment in general—this is the same philosophy emphasised by the IMMI and other information freedom advocacy groups such as the Digital Freedom Society and the Electronic Frontier Foundation.
The OpenLeaks platform, says Herbert, was thus largely sculpted by what he and others witnessed first-hand as the shortcomings of working with and within the WikiLeaks organisation.
“OpenLeaks is going to be having a considerably more transparent structure,” says Herbert. “Both financially and organizationally. And there is absolutely no place whatsoever for any sort of unilateral decision making. The problem with that is that it’s called dictatorship. Which is not the most efficient way to run things, especially if you have an organisation that needs to grow quite quickly. That I think is really the largest failing of WikiLeaks, that although it has a lot of volunteers, it’s very difficult to make any efficient use of those volunteers because you have a single person who wants to be aware of everything that’s going on.”
CLIMATE CHANGE
Another of the IMMI’s underlying principles is that the benefits of reacting proactively to the changing information climate are systemic—they include the possibility of true transparency, responsible politicians and responsible journalists.
“There is so much need to set laws that are in line with the fact that information doesn’t have any borders anymore, in our world,” says Birgitta.
But in Iceland, perhaps the biggest sell for the IMMI legislative framework is the ways in which the country could be benefited financially.
“The economic benefits to being the safe-haven for free speech are very well known” says Smári, “because the last country that did it is still the dominant empire on the planet.”
“Well, kind of.”
“If you look at how the U.S. did things in the early days,” he continues, “they basically ignored European copyrights and patent laws and just said, ‘well, we want people to innovate here.’ They took a very interesting stance towards information freedom. Iceland can do that. And we can do it a lot faster.”
The compelling need for proactive legislative reform, says Birgitta, is largely apparent in the state of the media, particularly in Europe and especially in the U.K., “where it is actually much worse than most people are aware of.”
According to her, the changing media landscape threatens not only the integrity but also the very existence of investigative journalism.
“Most of the media is moving onto the Internet and since investigative journalism is very expensive, it is very weak, and it needs legislative protection in order for it to carry on thriving. The way we could help with investigative journalism for example is if we could create the legislative environment so that there are not as many prior restraints and super injunctions on these stories so that they actually get published.
“I think the biggest problem we’re faced with when it comes to freedom of information is the altering and falsification of our current history. And I’ve seen that very clearly in the British media. The reason why I’m concerned about the British Media is that there are all these very respected media with qualified journalists and good reputations—BBC, Independent, Financial Times, Guardian—and most other media outlets go there to recycle stories, particularly online.”
In the U.K., Birgitta says, libel laws in particular are so bad that “you can actually go back to the first days of the Internet and pull things out of the historical record. And this is what’s happening, stories are being taken out, because the media outlets can’t afford the time or the money to deal with the libel lawsuits,” particularly by large corporations trying to protect their image and interests.
“The same with the super injunctions,” she adds. “That is such an incredible thing. I couldn’t believe it at first, but I’ve actually gotten it confirmed by a lot of journalists who have been victims of it. Super injunction means that, say you’re writing a story about BP, and they find out. BP talks to the head of the BBC or whatever, and say ‘were going to sue you if you do this.’ Then you reach a settlement and the settlement includes a gag order, a super injunction, which means that you can’t tell anyone that you can’t write the story. And then if accidentally you find out that I’m under super injunction, you are automatically, as a journalist, under super injunction too. It’s unbelievable. And this is Britain.”
LOST IN TRANSLATION
“But the problem is systemic, and Iceland is no exception to the rule. In August 2009, state TV station RÚV was slapped with an injunction minutes before airing a story about Kaupthing bank’s ‘large loan book’—a package of documents leaked by WikiLeaks revealing hundreds of billions of ISK that were essentially funnelled from the bank to its own shareholders in the form of loans just before its collapse. In January that same year, prior to the document leaks, competing TV station Stöð 2 was hit with a similar gag-order while preparing to air a story about the relationship between Kaupthing and Robert Tchenquiz, a property entrepreneur who was later implicated in the loan book scandal. The program, Kompás, was not aired, and its entire staff promptly fired.
Kristinn Hrafnsson, a current spokesman for WikiLeaks who worked on both stories, describes the Icelandic media as “sheepish” and investigative journalism in Iceland as “virtually dead.”
“Very few journalists had the drive or the means to carry out proper investigative journalism before the current economic crisis hit the country,” says Kristinn. “Since then there have been massive layoffs and cuts hitting most media organisations, [resulting] in the decline of investigative journalism in Iceland at a time when it is badly needed.”
“We are in a really big dilemma in Iceland because RÚV is not doing what it needs to be doing,” Birgitta says. “And I don’t see much investigative journalism. Here we have this financial mess, and it’s complicated, and the experts in the field speak a language that most of us don’t understand. The job of a good journalist is to translate that into a language that we understand. For me, that should be the role of RÚV.”
Indeed for many of those familiar with the state of the media in Iceland, the suggestion that the country could become a lifeline for investigative journalism, a Mecca for freedom of information, seems quite ironic.
“I was speaking at the Association of European Journalists earlier [last] year,” says Birgitta, “and there’s nobody from Iceland in this union. It’s been going on for 56 years, and never have we had any Icelandic journalists in that. We’re very passive when it comes to journalists understanding that they’re part of an international community.”
“Journalists have a big responsibility,” Birgitta says. “It is not only about having the freedom [of information], you have to be able to translate it so that the rest of the people can share or have access to it in such a way that they actually care.”
But good journalism cannot exist in a vacuum. There is a vital interplay between demand and supply, and a cultural change in the understanding of the role of journalism, seemingly must follow.
“Well, the Icelandic media are rather pathetic,” says Smári, “but I think that they’re starting to realise this. Whether that will drive them to become better, I don’t know. But I don’t really think this is so much about Icelandic media, as Icelandic society as a whole. Because it isn’t just the media that needs to be reformed.”
He continues: “The general public needs to realise that information freedom is absolutely worthless if people are going to be turning a blind eye to all of the bad things that are going on.”
In the end, much like WikiLeaks and, tentatively, OpenLeaks, the IMMI is meeting a global demand, although the impact may turn out to be local.
“Even if this is a contradiction in a sense,” says Birgitta, “or a paradox, that we have a shabby culture of journalism, and yet to make Iceland into a Mecca for freedom of information. Since information doesn’t have borders, it doesn’t really matter where the Mecca is.”
“There are so many facets to this,” says Smári. “And some of them are more hack-ish, more crypto-anarchical, and some of them have suits and look nice towards the government, and you have the entire spectrum in between. But if you look deep enough it’s actually all the same people. Some days I wear suits and some days I break into things… Well, except for Julian Assange. He always wears a suit, especially when breaking into things.”

THE IMMI PROPOSAL:
The IMMI proposal combines statutes from around the world—Sweden, Belgium, the United States and France, among others—dealing with source and libel protection, freedom of information, and transparency, in the hopes of creating comprehensive legal protections for media organizations, newspapers, journalists, and sources alike—globally.
The proposition was passed unanimously by the Alþingi on June 16th, 2010, and has thus become parliamentary policy, though as of yet it has no legislative value. All of the proposed improvements to at least 13 laws in four different ministries have yet to be passed, and the estimated time for the entire IMMI package to be legislated and passed is about one year.
The proposal’s primary sponsor in Parliament was Birgitta Jónsdóttir who, along with Julian Assange, Smári McCarthy, Herbert Snorrason and Rop Gonggrijp, was also one of the proposal’s primary authors.
Birgitta said it would be “bizarre” if the overwhelming support shown for the proposal by Parliament in June of last year wouldn’t translate when the laws have been written and are ready to go through the Parliament.

A BEACH OF BITS:
The backdrop against which the history of IMMI and of WikiLeaks is set involves the complicated history of the Internet, and the up-until-recently-underground discussion regarding transparency and information freedom on the electronic frontier.
“The world has been kind of in flux the last couple of years,” says Smári McCarthy, “and this is definitely a lot of fuel to that fire. But this isn’t the revolution, by far.”
In fact, Smári tells us this isn’t even the first ‘cyber war’. The first war was waged through the last decade of the last century, he says, and ended with a Supreme Court ruling whereby encryption was taken off the U.S. Munitions List. ‘Bernstein v. United States’ decreed written software code as a form of speech protected by the First Amendment; prior to 1999, cryptography had the same export restrictions as nuclear warheads, meaning that one had to be licensed by the State Department as an arms dealer before one could “export” software code by posting it on the internet.
“Basically if you lived outside the U.S. you didn’t have access to good crypto,” says Smári. “And if you lived in the U.S. you didn’t really use good crypto anyway because you might accidentally export it and land yourself in jail for a long time. In 1999 that barrier dropped and suddenly e-commerce became possible. The fact that we can buy stuff online is a direct result of the hackers winning the first cyber war. So imagine what good it could do for the world if we win the second one.”
How winning will be defined in the current ‘war’, including where and by whom, is a question that information freedom activists and whistleblowing organisations like WikiLeaks continue to struggle with. What remains to be seen is how governments, organisations and societies as a whole respond to the changing conditions of the as-yet-largely-undefined paradigm of the Internet, wherein information no longer has any borders.
The most pressing question, at least to the organizers of IMMI, is what to do when the war has been won.
“We need to figure out what is going to happen if victory happens,” says Smári. “How are we going to restructure society? This means we need to look at how infrastructure works, we need to think about how government models work. We need to make sure that if society changes we have figured out what we want it to change into.”



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